2013 Response to Rights to Light (April)

Introduction

The National Organisation of Residents Associations (NORA) has members in England and Wales, whose members comprise nearly two million residents. Their views on this consultation paper have been sought, and the resultant response contains all the comments and criticisms they have made.

The Consultation Paper explains the relationship between the 'dominant' party and the 'servient' party. Residents involvement in this issue relates to two situations. Residents in a primarily residential area are likely to belong to both parties, whereas residents in town and city centres are most likely to be the 'dominant' party and commercial interests may be the 'servient' party.

Although the documentation is detailed and in spite of the legal language, the presentation is commendably clear, so the apparent incongruity between the described responses regarding the considered changes to the rights to light and the recommendations in the document is clearly exposed. NORA members consider that, whether the problem is between residents or involves commercial interests, in either case some of the proposals in this paper would be detrimental to the interests of residents when they are the 'dominant' party, and the responses to the questions reflect this concern.

THE IMPACT OF REFORM OF RIGHTS TO LIGHT

NORA has no data to answer questions in paragraphs 8.3, 8.4, 8.5, 8.6, 8.7 and 8.8.

8.9 We would appreciate any evidence that consultees can provide on how the amenity provided by natural light is, or might be, valued. [paragraph 1.49]

NORA members do not see that a universal formula could be designed to allow a fair and appropriate assessment of the amenity value provided by natural light. The value would vary from very little for a window in a lavatory to a considerable sum for an artist's studio, when the loss of natural light could render the property useless for an artist owner.

8.10 We invite consultees to make any further comments, or provide any additional evidence, which they feel may be relevant when assessing the practical and economic impact of rights to light. [paragraph 1.51]

The major issues relate to the well-being of residents. These will vary from room to room and may be different for different residents.

In terms of living rooms the daily changing of the light gives life to the users in terms of knowing the time of day, the period of the year, the colours of the room and experiencing the changes during daylight hours. Once a living room needs to be continuously lit by artificial light, the atmosphere of the room is totally changed.

In bedrooms this may not be of great concern, though the arrival of the dawn is an important aspect for the start of each day. Once that is lost, perhaps a feeling of imprisonment might even emerge.

For studies and rooms used for watching television, the loss of daylight may be an advantage, but new owners may change the use of rooms, so that the value of daylight to the resident would change.

For basements and stairways daylight may be important for safety reasons especially when such areas have poor or inadequate artificial lighting.

Finally there is the problem of Seasonal Affective Disorder said to be produced by poor lighting that occurs primarily in the UK in Scotland, and it is usually attributed to the seasonal decline in sunlight hours. Accordingly a reduction in daylight levels inside dwellings could precipitate this disorder in susceptible individuals anywhere.

Consequently NORA members do not see how a financial value could be assessed in general terms since there are so many variables affecting the amenity value of the right to light according to the use of rooms and the particular occupiers at any one time.

NORA members appreciate the demand for commercial development in town and city centres, and serious problems can arise between commercial developers when one commercial enterprise seeks substantial sums in return for yielding their rights to light. NORA members conclude that in this instance, it is the management of ransom demands that merit regulation.

The rights to light between neighbouring residents and between residents and commercial developers must remain in order to protect the environment of residents. The question of ransom compensation between residents is highly unlikely to arise since either the problem can be resolved by mediation and discussion or the dominant party has no interest in relinquishing their rights to light. Disputes between residents and commercial developers may be more difficult to resolve, but to remove the rights to light from residents in order to resolve this issue is a step too far and not fair and just to residents. The responses to the following questions reflect this argument.

THE CREATION OF RIGHTS TO LIGHT BY PRESCRIPTION

8.11 We provisionally propose that prescription should be abolished for rights to light. Do consultees agree? [paragraph 3.48]

No.

It is in this issue that the incongruity of the Consultation Paper's logic is apparent. Whereas respondents to the original consultation accepted that changes to prescription for positive easements were generally supported, there was no such support for removing the prescription facility for negative easements in particular the rights to light (paragraphs 3.3 and 3.4). Yet this consultation paper proposes the removal of the possibility of obtaining rights to light by prescription.

The arguments in favour of retaining the prescription rights to light - paragraphs 3.38, 3.39, 3.41, 3.42, 3.43, and 3.45 - are supported. In particular the criticism that the planning system is too flexible to provide the necessary protection to the rights for light for residents is fully appreciated. Government policy makers, planning inspectors, local planning officers and planning councillors seem less inclined to protect the environment of residents and the community when confronted by a powerful large developer, whose main concern is to make a financial profit and only defers to a concern for the effect the proposed development will have on the environment when effective legislation is imposed.

The 1996 Party Wall etc. Act may give some protection to a 'dominant party' resident when a neighbour's extension is within six metres of the resident's building, but would not offer any useful protection, for example, were a two storey development to be built further away.

That residents are concerned to keep the prescription rights to light is because they are much less likely than commercial enterprises to be prepared to sell their rights to light whatever the price, whereas commercial enterprises may well be prepared to do so especially when a large ransom might be obtained.

8.12 Consultees, in particular those who do not wish to see the abolition of prescription for rights to light, are asked to tell us their views on the procedural requirements for the service and registration of light obstruction notices under the Rights of Light Act 1959, and whether they wish to see any reform or simplification of those requirements. [paragraph 3.54]

No.

The present facility is simple enough. The expense and effort required to register a light obstruction notice is sufficient to make the possible 'servient' party think twice whether or not to pursue it. The need to protect property from positive easements such as rights of passage being acquired by possible 'dominant' parties also requires some effort and expense, so negative easements should be no different.

INTERFERENCES WITH RIGHTS TO LIGHT

8.13 We ask consultees whether reform is needed to the principles governing when an obstruction of light is actionable and, if so, we would be grateful for consultees&~39; suggestions for reform.[paragraph 4.43]

No.

NORA members see no positive and adequate reason to reform the current system of establishing whether or not an obstruction to light is actionable.

REMEDIES: INJUNCTIONS AND DAMAGES

8.14 We provisionally propose that a court may award damages in substitution for an injunction in rights to light cases if the grant of the injunction would be disproportionate, bearing in mind:

(1) the size of the injury in terms of loss of amenity (which can include consideration of whether artificial light is usually used by the claimant);

(2) whether a monetary payment will be adequate compensation;

(3) the conduct of the claimant;

(4) whether the claimant delayed unreasonably in bringing proceedings; and

(5) the conduct of the defendant.

Do consultees agree? [paragraph 5.50]

Yes.

NORA members agree with the proposals that a court should decide whether damages or an injunction are appropriate using the criteria in paragraph 5.50.

8.15 We would be grateful for consultees' views on limiting to rights to light cases reform of the test for when damages may be awarded in substitution for an injunction. [paragraph 5.56]

NORA members see no adequate reason to impose a different set of rules for cases involving rights to light than cases dealing with positive easements.

8.16 We would be grateful for consultees' views on the options for reform of the method of assessment of equitable damages explored in Chapter 5. We would also be grateful for consultees� views on the introduction of a cap on the amount of equitable damages that may be awarded and how this could be achieved in practice. [paragraph 5.94]

NORA members appreciate the serious problems that judges have had in assessing equitable damages, and they consider the solutions and methods of assessment that have evolved are unlikely to be improved without hazarding the fairness of the awarding of damages. The key problematic issue described in the consultation paper is that of ransom payments, and it would be quite wrong to change the system in favour of commercial servient parties when residents as dominant parties just do not want to lose their rights to light.

THE NOTICE OF PROPOSED OBSTRUCTION PROCEDURE

8.17 We provisionally propose that a court should not be able to grant an injunction to prevent or remedy an infringement of a right to light where the dominant owner has received a Notice of Proposed Obstruction and has not protected his or her right to an injunction in accordance with the procedure described in Chapter 6 and illustrated by the draft clauses at Appendix C of this Consultation Paper. Do consultees agree? [paragraph 6.47]

Yes.

NORA members agree that the improper behaviour of a dominant party, who has been properly notified of the Notice of Proposed Obstruction, should not enable the dominant party to seek an injunction.

8.18 We would be grateful for consultees' comments on the detail of the Notice of Proposed Obstruction procedure as provisionally proposed, including:

(1) the form and content of the notice;

(2) the rules governing service of the notice;

(3) the third-party effect of the notice;

(4) responding to the notice by a counter-notice and issuing proceedings;

(5) multiple-notices and shelf-life; and

(6) cost recovery.

[paragraph 6.48]

NORA members' concern would be the need to ensure that the Notice was properly received by the relevant party.

8.19 We would be grateful for consultees' views on the suitability and practicability of limiting the Notice of Proposed Obstruction procedure to use in relation to rights to light benefiting commercial premises only.[paragraph 6.50]

No.

NORA members see no reason to provide one party with rights denied to another party. Problems of rights to light can be just as important to residents, and as mentioned they are less likely to want to relinquish their rights to light, so the facility should remain for residents too.

BRINGING RIGHTS TO LIGHT TO AN END

8.20 We would be grateful for consultees' views on whether the law of abandonment through alteration of apertures should be reformed and, if so, how the current law could be improved.[paragraph 7.48]

NORA members have not offered any possible improvements to the present method of assessing the relevance of changing apertures.

8.21 We provisionally propose that the jurisdiction of the Lands Chamber of the Upper Tribunal should be extended so as to enable it to make orders for the modification or discharge of existing rights to light. Do consultees agree?[paragraph 7.132]

Yes.

April 2013                                                 Alan B Shrank - NORA chairman